Riley v. Superintendent

Filing 23

ORDER DISMISSING PETITION for writ of habeas corpus pursuant to 28:2244(d)(1), denying certificate of appealability and closing cse. Signed by Judge Rudy Lozano on 8/3/11. (smp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
WILLIAM EDWARD RILEY,
Petitioner,
v.
SUPERINTENDENT,
Indiana State Prison,
Respondent.

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NO. 3:10-CV-380

OPINION AND ORDER
This matter is before the court on the Respondent’s response
to the Court’s order to show cause.
below,

pursuant

to

28

U.S.C.

§

For the reasons set forth

2244(d)(1),

the

petition

is

DISMISSED, the Petitioner is DENIED a certificate of appealability,
and the Clerk is DIRECTED to close this case.

BACKGROUND
Petitioner William Riley, a prisoner confined at the Indiana
State Prison, filed this petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his 1996 Lake County
convictions for dealing in a counterfeit substance, dealing in
cocaine, possession of cocaine, and being a habitual offender, for
which he received a sixty year sentence. The Respondent argues that
the petition is untimely.

DISCUSSION
Pursuant

to

28

U.S.C.

§

2244(d)(1),

as

amended

by

the

Antiterrorism and Effective Death Penalty Act of 1996, a petition

for writ of habeas corpus seeking federal collateral relief from a
state conviction must be filed within one year of the date on which
(1) the

judgment became final by the conclusion of direct review;

(2) a state created unconstitutional impediment to appeal was
removed; (3) the constitutional right asserted was recognized by
the United States Supreme Court and made retroactively applicable
to the states; or (4) the factual predicate for the claims could
have been discovered through the exercise of due diligence. Section
2244(d)(2) provides that a properly filed state application for
post-conviction relief or other collateral review tolls the statute
of limitations.
A conviction is final when a judgment of conviction has been
rendered, the availability of appeal exhausted, and the time for a
petition for writ of certiorari has passed.
479 U.S. 314, 321 n. 6 (1987).

Griffith v. Kentucky,

The statute of limitations is

tolled for that period during “which a properly filed application
for State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending.”

28 U.S.C. §

2244(d)(2); Artuz v. Bennett, 531 U.S. 4,5 (2000).
Riley took a direct appeal and the Indiana Supreme Court
affirmed his convictions on May 11, 1999 (DE 12-4).

Accordingly,

his convictions became final on August 9, 1999, and he had until
August 9, 2000, within which to

file either a petition for writ of

habeas corpus or a state petition for post-conviction relief that
would toll the statute of limitations. 28 U.S.C.§ 2244(d)(1)(A).
2

Riley filed a petition for post-conviction relief on July 20,
2000, (DE 12-1 at 12), which he voluntarily withdrew on April 8,
2002

(DE

12-1

at

11).

Riley

refiled

his

petition

for

post-conviction relief on November 18, 2002, (DE 12-1 at 11), which
remained pending until the trial court denied it on February 10,
2009 (DE 12-1 at 4).

The Indiana Court of Appeals affirmed the

denial of post-conviction relief on November 13, 2009, (DE 12-5),
and the Indiana Supreme Court denied transfer on January 14, 2010
(DE 12-3 at 6).
Three hundred forty five days elapsed from the date Riley’s
convictions

became

final

until

he

filed

his

petition

for

post-conviction relief on July 20, 2000. This petition for postconviction relief stayed the statute of limitations until Riley
withdrew it, at which point the statute of limitations resumed
running. Another 224 days elapsed from April 8, 2002, the date the
Petitioner withdrew his petition, until he re-filed it on November
18, 2002.

Thus, the statute of limitations ran before Riley

re-filed his petition on November, 18, 2002.
Riley’s petition for writ of habeas relief is also untimely
under

the

balance

of

the

provisions

in

§

2244(d)(1).

The

Petitioner does not suggest that he was unable to raise the claims
set forth in his petition for writ of habeas corpus because of any
impediment created by the State of Indiana, nor does he assert that
his

claims

in

this

petition

are

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founded

on

new

law

made

retroactively applicable to cases on collateral review or on facts
that could not previously have been discovered with the exercise of
due diligence.

Thus, the petition is barred as untimely under 28

U.S.C. § 2244(d)(1).
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases,
the Court must consider whether to grant Riley a certificate of
appealability.

To

obtain

a

certificate

of

appealability,

a

petitioner must make a substantial showing of the denial of a
constitutional right by establishing “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues
presented

were

adequate

to

deserve

encouragement

to

further.”

proceed

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

When the court dismisses a petition on procedural grounds, the
determination of whether a certificate of appealability should
issue has two components.

Id. at 484–85. First, the petitioner

must show that reasonable jurists would find it debatable whether
the court was correct in its procedural ruling.

Id. at 484.

Next,

the petitioner must show that reasonable jurists would find it
debatable whether the petition states a valid claim for denial of
a

constitutional

right.

Id.

To

obtain

a

certificate

of

appealability, the petitioner must satisfy both components. Id. at
485.
For the reasons stated in this memorandum, the Court concludes
that Riley’s petition for writ of habeas corpus is barred by the
4

statute of limitations.

Riley has not established that jurists of

reason could debate the correctness of this ruling or find a reason
to encourage him to proceed further.

Accordingly, the Court

declines to issue Riley a certificate of appealability.

CONCLUSION
For the foregoing reasons, the court DISMISSES this petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2244(d)(1),
DENIES the Petitioner a certificate of appealability, and DIRECTS
the Clerk to close this case.

DATED: August 3, 2011

/S/RUDY LOZANO, Judge
United States District Court

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